NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 19, 2012*
Decided November 19, 2012
Before
WILLIAM J. BAUER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐2064
CHARLES DONELSON, Appeal from the United States District
Petitioner‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09‐cv‐6768
MICHAEL P. ATCHISON,
Respondent‐Appellee. James B. Zagel,
Judge.
ORDER
Charles Donelson, an Illinois prisoner, forfeited two months of good time after a
disciplinary committee found that he had engaged in sexual misconduct with another
inmate and lied to staff members about the incident. Donelson petitioned for a writ of
habeas corpus to overturn the decision, see
28 U.S.C. § 2254, but the district court denied
relief. We affirm the court’s decision.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. The appeal is thus submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2)(C).
No. 12‐2064 Page 2
Another inmate, Jacob Tulley, accused Donelson of entering his cell and raping him.
Tuelley was alone at the time, and when his cell mate, Glynn Garnett, returned later and
noticed that the window in their cell door was covered, he knocked instead of going right
in. Donelson then exited, and Garnett observed that Tulley appeared nervous and showered
immediately after Donelson had left. When prison investigators confronted Donelson, he
denied raping Tulley. Tulley then changed his story and insisted that he and Donelson had
engaged in consensual sex (which the Department of Corrections also defines as
misconduct).
Donelson received a disciplinary report accusing him of sexual misconduct (not
sexual assault),
Ill. Admin. Code tit. 20, § 504 app. A (107), and giving false information to
staff members,
id. (303). Six days later a disciplinary committee conducted a hearing at
which Donelson testified orally and in writing and also called three alibi witnesses. In
finding him guilty, the committee explained in writing that it had relied on statements from
Tulley and Garnett. Donelson’s administrative appeals were rejected.
Donelson then initiated judicial review in the Illinois courts by petitioning for a writ
of mandamus. His only contention was that the disciplinary committee had denied him due
process by failing to address in its written decision the contradiction between the two
statements Tulley had given investigators. Apparently he also submitted a purported
affidavit from Tulley, dated many months after the disciplinary hearing, in which Tulley
altogether denies having sex with Donelson and says that he and Garnett fabricated the
story to get back at Donelson after an unrelated disagreement. The circuit court rejected
Donelson’s petition without a written opinion. He appealed, but the appellate court
dismissed the case for failure to prosecute after Donelson failed to compile the record in the
required format. The Supreme Court of Illinois then denied Donelson’s petition for leave to
appeal, which asserted that the appellate court should have dispensed with the formal
record and reviewed the circuit court’s decision based on the documents he supplied even if
formatted incorrectly.
Donelson then turned to federal court. Most of his § 2254 petition is devoted to
arguing that his federal claims were not procedurally defaulted when the state appellate
court dismissed his case for failure to prosecute. See
28 U.S.C. § 2254(b)(1)(A); Mulero v.
Thompson,
668 F.3d 529, 535–36 (7th Cir. 2012). On that point the state no longer disagrees
with Donelson, so we need not say any more about the subject. Donelson also claimed that
he did not receive all of the procedural safeguards guaranteed by Wolff v. McDonnell,
418
U.S. 539 (1974). He insisted that Wolff entitled him to lay assistance in defending the
disciplinary charges, and also that the finding of misconduct is not supported by the
evidence, given that Tulley had made inconsistent statements to prison staff. The first
contention, as the state noted, was not included in Donelson’s state petition for a writ of
No. 12‐2064 Page 3
mandamus. The district court concluded that the committee had afforded Donelson all the
process he was due and denied his petition.
On appeal to this court Donelson’s contentions have expanded again. Because the
disciplinary hearing resulted in the loss of good time, Donelson was entitled to 24‐hour
advance notice of the alleged violations, an opportunity to present evidence to an impartial
decision maker, and a written statement supported by “some evidence” explaining the
discipline imposed. See Wolff v. McDonnell,
418 U.S. 539, 563–70 (1974); Superintendent v. Hill,
472 U.S. 445, 455 (1985); Eichwedel v. Chandler,
696 F.3d 660, 675 (7th Cir. 2012). Donelson
does not argue that he was deprived of these protections, except that he continues to insist
that the evidence does not support the finding of misconduct. Beyond that contention he
again asserts that he was entitled to a lay advocate, and now for the first time also argues
that the disciplinary committee was required to administer a polygraph before deciding that
he was guilty (it is not clear whether the committee would have given Donelson or Tulley
the test).
The state counters that Donelson procedurally defaulted or waived all of these
claims by not presenting them to the state circuit court or to the district court. See
28 U.S.C.
§ 2254(b)(1)(A); Perruquet v. Briley,
390 F.3d 505, 514, 518 (7th Cir. 2004); Piggie v. Cotton,
342
F.3d 660, 667 (7th Cir. 2003). We disagree with the state concerning the claim of insufficient
evidence, which Donelson has been asserting from the beginning. But he did not assert in
the state circuit court that he should have been provided a lay advocate, and he has not
tried to explain or excuse his silence on that claim, so indeed it is procedurally defaulted. See
Crockett v. Hulick,
542 F.3d 1183, 1193 (7th Cir. 2008); United States ex rel. Bell v. Pierson,
267
F.3d 544, 555 n.6 (7th Cir. 2001). In addition, Donelson mentions for the first time in his brief
to this court the theory that a polygraph test should have been administered, so he has both
procedurally defaulted and waived that argument. That Donelson has claimed a denial of
“due process” on the basis of the purported weakness in the evidence underlying the
disciplinary decision does not give him license to bring up any contention relating to the
disciplinary proceedings; to preserve a claim he had to identify both the operative facts and
the controlling legal principles. See Johnson v. Hulett,
574 F.3d 428, 432 (7th Cir. 2009); Stevens
v. McBride,
489 F.3d 883, 894 (7th Cir. 2007); Piggie,
342 F.3d at 667.
As for Donelson’s claim about the evidence, we conclude that the disciplinary
committee’s decision is supported by at least “some evidence.” Hill,
472 U.S. at 455. The
standard is met even by “meager” evidence or a “modicum” of evidence.
Id. at 455, 457. At
the time of the disciplinary hearing, Tulley maintained that he and Donelson had engaged
in consensual sex. Garnett stated that the window to the cell was blocked, that when he
knocked on the door Donelson departed from the cell, and that after Donelson had left
Tulley appeared nervous and showered. This evidence fully supports the disciplinary
No. 12‐2064 Page 4
committee’s decision, and the recantation purportedly obtained from Tulley months later
does not undercut the finding of guilt made by the committee on the evidence before it.
AFFIRMED.
